The Czech Presidency of the EU Council has confirmed, in a new draft compromise on the Digital Platform Workers Directive dated 10 October and seen by EUROPE, the tightening of the criteria for triggering the legal presumption of employment.
“For the presumption to be effective in practice, three of the criteria indicating that [...] the person [...] performing work on a platform can be considered a worker, should always be met to trigger its application”, the Czech Presidency proposes. The Commission’s initial proposal was to retain the need to tick only two out of five criteria to trigger this presumption.
The latest Czech text also proposes seven criteria instead of five.
“The relationship [...] between a digital work platform, or an intermediary [...] and a person performing platform work through that platform shall be legally presumed to be an employment relationship [...], if at least three of the criteria below are de facto fulfilled”, writes the Presidency, namely “if: (a) the digital work platform or intermediary [...] determines [...] the level of remuneration [...]; (b) if it requires the person performing the platform work to comply with specific rules [...] with regard to appearance, conduct towards the recipient of the service or the performance of the work; (c) if it supervises the performance of the work or checks the quality of the results of the work, including by electronic means; (d) if it restricts the freedom, including by means of sanctions, to organise one’s work by limiting the freedom to choose one's working hours or periods of absence [....]; (d.a) if it restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to accept or to refuse tasks; (d.b) if it restricts the freedom, including by means of sanctions, to organise one’s work by limiting the possibility discretion to use subcontractors or substitutes; (e) and finally, build a client base or to perform work for any third party”.
The last working groups in the EU Council, at the end of September, had shown that a fairly large number of countries did not want to work with a presumption of employment that was “too broad” and could include too many workers, including self-employed workers, a source told EUROPE on 3 October.
A number of delegations had also logically asked for a better definition of legal subordination and for the status of the truly self-employed wishing to remain so to be preserved.
The position of some countries that are concerned about a negative impact of the directive on the economic development of platforms is also taken into account.
“The effective implementation of the legal presumption through appropriate measures, such as the provision of information to the public, the development of guidance and the strengthening of controls and inspections on the ground, is essential to ensure legal certainty and transparency for all parties concerned. These measures should avoid the reclassification of the truly self-employed, take into account the specific situation of start-ups in order to support the entrepreneurial potential and the conditions for the sustainable growth of digital work platforms in the Union”, the text underlines.
The compromise also specifies that the legal presumption “shall not apply to fiscal, criminal and social security proceedings, unless Member States provide otherwise”.
For the rest, the text maintains that the reversal of the presumption of salaried status depends on the platforms, which will have to assist workers requesting their reclassification.
The text also provides additional safeguards for workers’ privacy.
“Platforms should not be allowed to process, by means of automated monitoring or decision-making systems, personal data of persons performing platform work that are not intrinsically linked to and strictly necessary for the performance of the contract between those persons and the digital work platform”.
“This means that they must not process personal data relating to emotional or psychological state, process personal data relating to private conversations and collect personal data while the person performing platform work is not offering or performing platform work”.
Link to the compromise: https://aeur.eu/f/3l8 (Original version in French by Solenn Paulic)